[Federal Register Volume 77, Number 24 (Monday, February 6, 2012)]
[Proposed Rules]
[Pages 5740-5743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2651]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 942

[SATS NO. TN-001-FOR; OSM 2011-0010]


Tennessee Abandoned Mine Land Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on program amendment.

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SUMMARY: We are announcing receipt of a proposed amendment to the 
Tennessee Abandoned Mine Land (AML) Reclamation Plan under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
Tennessee has submitted the amendment to reflect statutory, regulatory, 
policy, procedural, and organizational changes that have occurred since 
1984, when the State's AML program was affected by the withdrawal of 
the State's regulatory program.
    This document gives the times and locations that the Tennessee AML 
reclamation plan is available for your inspection, the comment period 
during which you may submit written comments, and the procedures that 
we will follow for the public hearing, if one is requested.

DATES: We will accept written comments until 4 p.m., local time March 
7, 2012. If requested, we will hold a public hearing on March 2, 2012. 
We will accept requests to speak until 4 p.m., local time on February 
21, 2012.

ADDRESSES: You may submit comments, identified by ``TN-001-FOR; Docket 
ID: OSM-2011-0010'' by either of the following two methods:
    Federal eRulemaking Portal: www.regulations.gov. The proposed rule 
has been assigned Docket ID: OSM-2011-0010. If you would like to submit 
comments through the Federal eRulemaking Portal, go to 
www.regulations.gov and follow the instructions.
    Mail/Hand Delivery/Courier:

Mr. Earl D. Bandy Jr., Field Office Director, Knoxville Field Office, 
Office of Surface Mining Reclamation and Enforcement, 701 Locust 
Street, Second Floor, Knoxville, TN 37902.
Mr. Tim Eagle, Manager, Land Reclamation Section, Knoxville Field 
Office, Department of Environment and Conservation, 2711 Middlebrook 
Pike, Knoxville, TN 37921.

    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section 
of this document.
    Docket: In addition to obtaining copies of documents at 
www.regulations.gov, information may also be obtained at the addresses 
listed below during normal business hours, Monday through Friday, 
excluding holidays. You may receive one free copy of the amendment by 
contacting OSM's Knoxville Field Office.

Mr. Earl D. Bandy Jr., Field Office Director, Knoxville Field Office, 
Office of Surface Mining Reclamation and Enforcement, 701 Locust 
Street, Second Floor, Knoxville, TN 37902. Telephone: (865) 545-4103, 
Email: [email protected].
Mr. Tim Eagle, Manager, Land Reclamation Section, Department of 
Environment and Conservation, Knoxville Field Office, 3711 Middlebrook 
Pike, Knoxville, TN 37921. Telephone: (865) 594-6035, Email: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Earl D. Bandy Jr., Telephone: (865) 
545-4103. Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Tennessee Program
II. Description of the Request
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Tennessee Program

    Regulatory Program (Title V): Section 503(a) of the Act permits a 
state to assume primacy for the regulation of surface coal mining and 
reclamation operations on non-Federal and non-Indian lands within its 
borders by demonstrating that its program includes, among other things, 
``a state law which provides for the regulation of surface coal mining 
and reclamation operations in accordance with the requirements of this 
Act * * * and rules and regulations consistent with regulations issued 
by the Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and 
(7). On the basis of these criteria, the Secretary of the Interior 
conditionally approved the Tennessee program on August 10, 1982. See 47 
FR 34753.
    Withdrawal of Tennessee's Regulatory Program: Because of the 
State's failure to effectively implement, administer, maintain, or 
enforce its program, the Director of OSM on April 8, 1983, notified the 
Governor of the problems and sought corrective measures pursuant to 30 
CFR part 733. OSM subsequently concluded that the State failed to 
adequately indicate its intent and capability to implement, maintain, 
and enforce its regulatory program and, on April 18, 1984, OSM 
substituted direct Federal enforcement of the inspection and 
enforcement portions of the TN regulatory program pursuant to 30 CFR 
733.12. See 49 FR 15496.
    On May 16, 1984, the State repealed most of the Tennessee Coal 
Surface Mining Law of 1980 effective October 1, 1984, and OSM withdrew 
approval of the Tennessee performance regulatory program in full, 
effective October 1, 1984. See 49 FR 38874.
    Abandoned Mine Lands Program (Title IV): Title IV of the Surface 
Mining Act establishes an Abandoned Mine Land (AML) program for the 
purposes of reclaiming and restoring land and water resources adversely 
affected by past mining. This program is funded by a reclamation fee 
imposed upon the production of coal. Lands and water eligible for 
reclamation are those that were mined or affected by mining and 
abandoned or left in an inadequate reclamation status prior to August 
3, 1977, and for which there is no continuing reclamation 
responsibility under state or Federal law. Title IV provides that a 
state with an approved surface mining regulatory program may have an 
AML program approved which gives it the responsibility and primary 
authority to implement the plan. On August 10, 1982, Tennessee's 
reclamation plan was approved. See 47 FR 34757.
    Suspension of Tennessee's AML Program: Because Tennessee's 
regulatory program was withdrawn, Tennessee's AML program was also 
affected. Section 405(c) of the Act provides that the Secretary shall 
not approve, fund, or continue to fund a state AML program unless that 
state has an approved state regulatory program pursuant to Section 503 
of the Act. Regulations implementing this provision were formerly found 
at 30 CFR 884.11, State Eligibility.
    The requirements of 30 CFR 884.16, Suspension of Plan, provide that 
upon withdrawal of regulatory program approval, the Director must 
suspend the AML Plan. Formal suspension of a state's Reclamation plan 
results in the following consequences: (1) The state is no longer 
eligible to receive the 50% allocation of the AML funds collected 
within the state; (2) funds which have been allocated to the state but 
have remained unexpended for three years may be withdrawn by the 
Director and used in any eligible area in the country, and (3) OSM will 
conduct only limited reclamation efforts in the state addressing only 
the highest priority

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problems which threaten the public health and safety. On October 5, 
1984, OSM assumed responsibility and authority for carrying out the 
provisions of Title IV within the state of Tennessee. See 49 FR 15505.
    Since that time, Tennessee no longer received an annual 
distribution of Federal funds for the purposes of carrying out an AML 
program (including administrative costs). Emergency and non-emergency 
projects in Tennessee were addressed by OSM, with OSM utilizing Federal 
contracts or cooperative agreements between OSM and Tennessee to 
procure construction services.
    Tennessee as a Minimum Program State: As a result of the AML 
Reauthorization Bill of 2006 (2006 SMCRA Amendment), the Congress 
authorized Tennessee to have an AML program and considered it a minimum 
funded program state, without a permanent regulatory program. The Bill 
provided that beginning in FY2008, Tennessee would be able to expend 
funds for reclamation of inventoried projects in accordance with the 
priorities of Section 403(a)(1) and (2). Since Tennessee is now 
authorized as a ``minimum program state,'' it is also eligible to 
receive funding to assume primary responsibility for administering the 
emergency program within the state.
    Updated Federal regulations: As stated above, at the time of 
Tennessee's regulatory program withdrawal, the Federal regulations at 
30 CFR 884.16 precluded a regulatory authority from receiving Federal 
funding for an AML program if its regulatory program was withdrawn. 
However, the 2006 SMCRA Amendment granted exceptions from that rule. 
The Federal regulations at 30 CFR 884.11 were amended on November 14, 
2008, and now provide that the states of Tennessee and Missouri are 
exempt from the requirement for an approved state regulatory program by 
Section 402(g)(8)(B) of SMCRA and are eligible to have an AML 
reclamation plan and funding. See 73 FR 67642.

II. Description of the Request

    By letter dated April 6, 2011, (Administrative Record Number TN-
1671), Tennessee sent us a request to approve its Tennessee Reclamation 
Plan amendment. Currently, 30 CFR 942.20, Approval of Tennessee 
reclamation plan for lands and waters affected by past coal mining, 
refers to the Tennessee Reclamation Plan as submitted on March 24, 
1982, as being the currently approved plan of record. This amendment 
seeks to address Federal and state changes that occurred since 1984, 
when the State's regulatory program was withdrawn.
    This amendment request formalizes discussions that took place 
between OSM and the State since the 2006 SMCRA Amendment. In a letter 
dated August 6, 2007 (Administrative Record No. TN-1670), OSM noted 
that an AML plan revision was necessary to update the reclamation plan 
of record to include any Federal and state changes that had occurred 
since 1984 as further described below:
    Federal Statutory Changes: There were three statutory changes and 
one Presidential order that occurred since TN forfeited primacy in 1984 
that had an impact on the effectiveness of the current AML plan of 
record: (1) The Abandoned Mine Reclamation Act of 1990: This bill 
revised the AML program to address interim program sites, insolvent 
sureties, AMD and mined land set-aside funds, fund objectives and 
priorities, and other issues; (2) Energy Policy Act of 1992: This bill 
revised the AML program in areas of coal remining, and abandoned coal 
refuse sites, as well as cooperative agreements for coal formation fire 
control projects; and (3) AML Reauthorization Bill of 2006: This bill 
extended the AML fee collection authority from 2007 to 2021 and revised 
the AML program in the areas of appropriation of funds, allocation 
formulas, fund objectives and priorities, AMD set aside accounts, water 
supply projects, state share payments, remining incentives, and minimum 
program funding to include the State of Tennessee.
    Federal Regulatory Changes: Changes made to the Federal regulatory 
provisions, as a result of the aforementioned statutory changes, 
affecting Tennessee's current Reclamation Plan of record are as 
follows: 30 CFR part 872, Moneys Available to Eligible States and 
Indian tribes; Part 874, General Reclamation Requirements; Part 876, 
Acid Mine Drainage Treatment and Abatement Program; Part 879, 
Management and Disposition of Lands and Water; Part 882, Reclamation on 
Private Land; Part 884, State Reclamation Plans; and Part 886, 
Reclamation Grants for Uncertified States and Indian Tribes. These 
regulation changes involved changes to the definitions of eligible 
lands and water, interim program eligibility requirements, reclamation 
objectives and priority designations, reclamation contractor 
responsibilities, state reclamation grant reporting, grant 
requirements, water supply projects, AMD set-aside accounts, and 
government-financed construction projects. See 73 FR 67638.
    Presidential Order--Grants management: Other Federal changes 
affecting Tennessee's current Reclamation Plan of record include 
changes to grant laws, policies, and procedures that have occurred 
since 1984. Currently, Federal grant funds (including AML grant funds) 
are governed by the guidelines issued by the President's Office of 
Management and Budget (OMB). On March 12, 1987, the President directed 
all affected agencies to issue a common grants management rule to adopt 
Government-wide terms and conditions for financial assistance to state 
and local governments (referred to as the Grants Management Common 
Rule). The OMB Circular A-102 was revised in 1988 to provide additional 
guidance to Federal agencies. The Department of the Interior issued its 
common rule on March 11, 1988, at 43 CFR part 12.
    The Grants Management Common Rule allows states to use their own 
procedures to manage their financial management, equipment, and 
procurement systems. OMB Circular A-102 was revised on October 14, 
1994, to include updated direction on: (1) Implementation of the metric 
system; (2) review of infrastructure investment; (3) implementation of 
the Resource Conservation and Recovery Act; and (4) public announcement 
of the amount of Federal funds used in certain contract awards. As a 
result of the Presidential Order, the grants management guidelines were 
codified at 43 CFR part 12 and extensive revisions were made to OSM's 
Federal Assistance Manual (FAM). In addition to the changes resulting 
from the Common Rule, OSM had simplified the AML grant process in 1993 
and these changes were also incorporated into the FAM.
    State Statutes and Regulations: The current Tennessee AML 
Reclamation Plan on record references Tennessee statute (Tennessee Coal 
Surface Mining Law of 1980) and regulations (Chapter 0400-1-24 of the 
Rules of the Tennessee Department of Conservation, Division of Surface 
Mining). Any changes to state statutes and regulations regarding the 
AML program should be reviewed to assure that they are not inconsistent 
with Federal statutes and regulations.
    State Policies, Procedures, and Administrative and Organization: 
Federal regulations at 30 CFR 884.13 outline the content of the AML 
reclamation plans. This includes state agency designations and legal 
opinions; description of the policies and procedures to be followed by 
the designated agency in conducting the

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reclamation program; and a description of the administrative and 
management structure to be used in conducting the reclamation program. 
These designations, opinions, policies, procedures (including 
coordination procedures), and organizational entities should be updated 
as necessary.
    Content of the Revised Tennessee Reclamation Plan: Tennessee has 
submitted an updated reclamation plan in an effort to address the 
concerns noted above. The revised plan includes the following sections: 
Governor's Letter of Designation; Legal Opinions; Purpose of the State 
Reclamation Program; Ranking and Selection; Coordination with Other 
Programs; Land Acquisition, Management and Disposal; Reclamation on 
Private Land; Rights of Entry; Public Participation Policies; 
Organization; Staffing Policies; Purchasing and Procurement; Accounting 
System; Description of Problems Occurring on Lands and Waters; 
Reclamation Proposals; Economic Base; Aesthetic, Historical or 
Cultural, and Recreation Values; and Endangered and Threatened Plant, 
Fish, Wildlife and Habitat. The revised plan replaces the old plan and 
is revised in parts; redesignated in parts; removed in parts and added 
in parts. Due to the extensive overhaul and a total rewrite of the 
plan, a section by section description of changes was not included.
    Below includes some of the changes made on behalf of Tennessee to 
address OSM recommendations noted above:
    The plan was revised to indicate that the division of Water 
Pollution Control, Land Reclamation Section is now responsible for 
ensuring AML reclamation, managing major functions, collecting data 
entered into AML inventory system pursuant to OSM directives, 
developing policies and procedures, and requesting legal assistance 
from General Counsel who determines eligibility. A revised 
organizational chart was also included.
    With regard to AML problem eligibility, Tennessee has added that 
AML problems include landslide hazards, highwalls, flooding, erosion, 
sedimentation, acid drainage, coal seam/refuse fires, subsidence, water 
loss, dangerous impoundments, abandoned structures/equipment, open mine 
portals, and open mine shafts and refuse areas and revised priority 
designations. A statement was also made that written approval will be 
obtained from OSM before commencement of AML project construction.
    With regard to reclamation on private land and rights of entry, the 
plan was revised to include the state's acquisition, management, and 
disposal of land disturbed by past mining; address appraisals on 
private land; revise written consents regarding entry to private lands; 
and add a procedure for when written consents cannot reasonably be 
obtained or the owner is unknown and/or cannot be located.
    References to OMB Circular A-102 were removed and a statement that 
purchasing and procurement systems used for all contracts conform to 
the requirements of the Grants Management Common Rule was added. In 
addition, statements regarding the procurement approval process, 
competition, small business utilization, advertising, bidder 
eligibility, and independent audits are also included.
    With regard to public participation, the plan was revised to 
provide that the State will use OSM's public participation process; 
public notices will be placed in local newspapers; and public 
participation policies are provided during the construction of the 
annual work plan.

III. Public Comment Procedures

    Under the provisions of 30 CFR 884.14 and 884.15, we are seeking 
your comments on whether the submission satisfies the applicable plan 
approval criteria of 30 CFR 884.13.

Electronic or Written Comments

    If you submit written comments, they should be specific, confined 
to issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations will be those that either involve personal experience or 
include citations to and analyses of SMCRA, its legislative history, 
its implementing regulations, case law, other pertinent State or 
Federal laws or regulations, technical literature, or other relevant 
publications. We cannot ensure that comments received after the close 
of the comment period (see DATES) or sent to an address other than 
those listed above (see ADDRESSES) will be included in the docket for 
this rulemaking and considered.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you may 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so. We will not consider anonymous comments.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., local time 
February 21, 2012. If you are disabled and need reasonable 
accommodations to attend a public hearing, contact the person listed 
under FOR FURTHER INFORMATION CONTACT. We will arrange the location and 
time of the hearing with those persons requesting the hearing. If no 
one requests an opportunity to speak, we will not hold the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If there is only limited interest in participating in a public 
hearing, we may hold a public meeting rather than a public hearing. If 
you wish to meet with us to discuss the submission, please request a 
meeting by contacting the person listed under FOR FURTHER INFORMATION 
CONTACT. All such meetings are open to the public and, if possible, we 
will post notices of meetings at the locations listed under ADDRESSES. 
We will make a written summary of each meeting a part of the 
administrative record.

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Other Laws and Executive Orders Affecting Rulemaking

    When a state submits a plan amendment to OSM for review, our 
regulations at 30 CFR 884.14 and 884.15 require us to hold a public 
hearing on a plan amendment if it changes the objectives, scope or 
major policies followed, or make a finding that the State provided 
adequate notice and opportunity for public comment.

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Tennessee is a Federal program and this amendment seeks to reinstate 
Tennessee's AML plan therefore we are publishing a Federal Register 
notice indicating receipt of the proposed amendment, its text or a 
summary of its terms, and an opportunity for public comment. We 
conclude our review of the proposed amendment after the close of the 
public comment period and determine whether the amendment should be 
approved, approved in part, or not approved. At that time, we will also 
make the determinations and certifications required by the various laws 
and executive orders governing the rulemaking process and include them 
in the final rule.

List of Subjects in 30 CFR Part 942

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 6, 2011.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. 2012-2651 Filed 2-3-12; 8:45 am]
BILLING CODE 4310-05-P